Contract Clauses 13 to 15
Sep. 21st, 2004 04:48 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
msagaraDid I mention Indemnity clauses?
Author's Warranties and Indemnities
13. a. The Author warrants and represents that the Author is the sole author of the Work, the sole owner of all the rights granted to the Publisher, and that the Author has not previously and will not assign, pledge, or otherwise encumber such rights; that the Author has full right and power to enter into this agreement and to grant the rights herein granted; that except for the material of others obtained under the provisions of paragraph 3 hereof the Work is original, has not been published before, and is not in the public domain; that it does not contain any material which violates any right of privacy, which is libelous or which violates any other personal right of any person; that the Work is not obscene; that no material in the Work infringes upon any statutory or common law copyright or other proprietary right; that no material in the Work violates any contract of the Author, express or implied, or discloses any information given to the Author in confidence or on the understanding it would not be disclosed or published; and that any recipe, formula or instruction contained in the Work is not injurious to the user.
Hi. I promise that no other publisher owns the right to distribute this work, and that I wrote every single word of it myself and didn't plagiarize. Honest. Oh, and it's not porn, or at least not of the illegal variety. And that it isn't The Anarchist's Cookbook, or if it is, that, umm, no one will get hurt by paying attention and attempting to use the book as a manual. [About which: someone came into the store asking for it. It's the only time in my entire life that I can remember in which the person asking for that book wasn't a teenager. Go figure.]
If, however, I'm wrong…
In the event of any claim, action or proceeding against the Publisher, its licensees, or any seller of the Work, based upon an alleged violation of any warranties and representations herein, (i) the Publisher shall have the right to defend the same through counsel of its own choosing, and (ii) no settlement shall be effected without the prior written consent of the Author, which consent shall not unreasonably be withheld, and (iii) the Author shall hold harmless the Publisher, any seller of the Work, and any licensee of a subsidiary right in the Work, against any damages (including reasonable attorneys' fees) finally sustained. To the extent that such claim, action, or proceeding is based upon libel, invasion of privacy, obscenity or bodily injury, if such claim, action or proceeding is successfully defended or settled, the Author's indemnity hereunder shall be limited to 50% of the expense (including reasonable attorneys' fees) attributable to such defense or settlement.
This kind of sucks. You don't get a choice in attorney, and you're stuck with 50% of the cost of a settlement. Unless you plagiarized the book, in which case, you're probably stuck with all of it.
For a first time novelist, in my experience no one will change this. I'm not sure that they'll change it for a big name novelist, although one imagines there might be some room; legal gets a lot of say. I also imagine that this is far more important for things like biographies, etc., than it is for fiction in terms of it coming home to roost.
c. If any such claim, action or proceeding is instituted, the Publisher shall promptly notify the Author, who shall fully cooperate in the defense thereof, and the Publisher may withhold payments of reasonable amounts due the Author under this or any other agreement.
This means that you'll never see another cent from your book if it had earned out, but that you won't have to sell your house.
d. These warranties and indemnities shall survive termination of this agreement.
People can sue you for anything to do with the book Publisher published at any point and you're still stuck, even if the book is at the time out of print, available only used, the rights reverted, etc.
e. If in the opinion of Publisher's legal Counsel the Work is unpublishable or will unduly subject the Publisher to risk of legal claim or contains unlawful material, then Author at Publisher's request will make changes and revisions in the Work satisfactory to Publisher's legal Counsel, or Publisher at its option may make revisions its legal Counsel recommends. Nothing herein and no changes or revisions made hereunder shall be deemed to affect the warranties and indemnities made by Author herein.
Legal Counsel often means the legal department, and they can be an total pain. They can be wonderful in other ways -- but if you get the right, over-zealous person, you can find yourself removing the use of the word "Kleenex" and "Asprin" or "Coke" from every piece of dialogue you write. Not that I have this problem, given what I've published vis a vis novels, but I've heard of plenty of other people who have. It's not universal, though. Because then you'd be able to predict things <wry g>.
Of course, they can probably lose their jobs if they're wrong or they miss something, so I suppose it makes sense.
Conflicting Publication
14. The Author shall not during the term of this agreement publish or permit to be published any material in book, pamphlet or other printed versions or in microfiche, filmstrip, sound recordings, or electronically recorded or reproduced forms (sound and/or visual) based upon material in the Work or which would directly compete with its sale.
Conflicting publication seems to be so loosely defined as to be non-existent in practical terms. Which is my shoddy way of saying that I didn't actually remember this clause until I typed it…
Copies to Author
15. Upon publication of the Work Publisher shall give the Authorten (10) twenty-five (25) free copies of the Work and the Author may purchase additional copies, if available, at 40% from the *invoice price not for resale.
I hear, frequently, that if you order books directly from the publisher, you don't get royalties on the sale. In this case, I had better, given the discount. I've asked two different representatives from large publishers with whom I don't publish, and they've also said that author's copies do receive royalties. But since the rumour is persistent, I'm curious to know how many of you who are published have encountered cases in which you don't or didn't. I have one contract with a small press publisher in which I can buy copies at a 60% discount from the retail price from the publisher -- but in that case I wouldn't expect to get royalties, and the contract specifies that at that discount, I don't.
Oh, and the boiler-plate here is, as you can see, 10 free copies. I vastly preferred 25. I didn't, in that case, get to keep them all, though; they were shipped to my agent, and he kept the copies he would then use for foreign agents.
That's it.
Author's Warranties and Indemnities
13. a. The Author warrants and represents that the Author is the sole author of the Work, the sole owner of all the rights granted to the Publisher, and that the Author has not previously and will not assign, pledge, or otherwise encumber such rights; that the Author has full right and power to enter into this agreement and to grant the rights herein granted; that except for the material of others obtained under the provisions of paragraph 3 hereof the Work is original, has not been published before, and is not in the public domain; that it does not contain any material which violates any right of privacy, which is libelous or which violates any other personal right of any person; that the Work is not obscene; that no material in the Work infringes upon any statutory or common law copyright or other proprietary right; that no material in the Work violates any contract of the Author, express or implied, or discloses any information given to the Author in confidence or on the understanding it would not be disclosed or published; and that any recipe, formula or instruction contained in the Work is not injurious to the user.
Hi. I promise that no other publisher owns the right to distribute this work, and that I wrote every single word of it myself and didn't plagiarize. Honest. Oh, and it's not porn, or at least not of the illegal variety. And that it isn't The Anarchist's Cookbook, or if it is, that, umm, no one will get hurt by paying attention and attempting to use the book as a manual. [About which: someone came into the store asking for it. It's the only time in my entire life that I can remember in which the person asking for that book wasn't a teenager. Go figure.]
If, however, I'm wrong…
In the event of any claim, action or proceeding against the Publisher, its licensees, or any seller of the Work, based upon an alleged violation of any warranties and representations herein, (i) the Publisher shall have the right to defend the same through counsel of its own choosing, and (ii) no settlement shall be effected without the prior written consent of the Author, which consent shall not unreasonably be withheld, and (iii) the Author shall hold harmless the Publisher, any seller of the Work, and any licensee of a subsidiary right in the Work, against any damages (including reasonable attorneys' fees) finally sustained. To the extent that such claim, action, or proceeding is based upon libel, invasion of privacy, obscenity or bodily injury, if such claim, action or proceeding is successfully defended or settled, the Author's indemnity hereunder shall be limited to 50% of the expense (including reasonable attorneys' fees) attributable to such defense or settlement.
This kind of sucks. You don't get a choice in attorney, and you're stuck with 50% of the cost of a settlement. Unless you plagiarized the book, in which case, you're probably stuck with all of it.
For a first time novelist, in my experience no one will change this. I'm not sure that they'll change it for a big name novelist, although one imagines there might be some room; legal gets a lot of say. I also imagine that this is far more important for things like biographies, etc., than it is for fiction in terms of it coming home to roost.
c. If any such claim, action or proceeding is instituted, the Publisher shall promptly notify the Author, who shall fully cooperate in the defense thereof, and the Publisher may withhold payments of reasonable amounts due the Author under this or any other agreement.
This means that you'll never see another cent from your book if it had earned out, but that you won't have to sell your house.
d. These warranties and indemnities shall survive termination of this agreement.
People can sue you for anything to do with the book Publisher published at any point and you're still stuck, even if the book is at the time out of print, available only used, the rights reverted, etc.
e. If in the opinion of Publisher's legal Counsel the Work is unpublishable or will unduly subject the Publisher to risk of legal claim or contains unlawful material, then Author at Publisher's request will make changes and revisions in the Work satisfactory to Publisher's legal Counsel, or Publisher at its option may make revisions its legal Counsel recommends. Nothing herein and no changes or revisions made hereunder shall be deemed to affect the warranties and indemnities made by Author herein.
Legal Counsel often means the legal department, and they can be an total pain. They can be wonderful in other ways -- but if you get the right, over-zealous person, you can find yourself removing the use of the word "Kleenex" and "Asprin" or "Coke" from every piece of dialogue you write. Not that I have this problem, given what I've published vis a vis novels, but I've heard of plenty of other people who have. It's not universal, though. Because then you'd be able to predict things <wry g>.
Of course, they can probably lose their jobs if they're wrong or they miss something, so I suppose it makes sense.
Conflicting Publication
14. The Author shall not during the term of this agreement publish or permit to be published any material in book, pamphlet or other printed versions or in microfiche, filmstrip, sound recordings, or electronically recorded or reproduced forms (sound and/or visual) based upon material in the Work or which would directly compete with its sale.
Conflicting publication seems to be so loosely defined as to be non-existent in practical terms. Which is my shoddy way of saying that I didn't actually remember this clause until I typed it…
Copies to Author
15. Upon publication of the Work Publisher shall give the Author
I hear, frequently, that if you order books directly from the publisher, you don't get royalties on the sale. In this case, I had better, given the discount. I've asked two different representatives from large publishers with whom I don't publish, and they've also said that author's copies do receive royalties. But since the rumour is persistent, I'm curious to know how many of you who are published have encountered cases in which you don't or didn't. I have one contract with a small press publisher in which I can buy copies at a 60% discount from the retail price from the publisher -- but in that case I wouldn't expect to get royalties, and the contract specifies that at that discount, I don't.
Oh, and the boiler-plate here is, as you can see, 10 free copies. I vastly preferred 25. I didn't, in that case, get to keep them all, though; they were shipped to my agent, and he kept the copies he would then use for foreign agents.
That's it.
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no subject
Date: 2004-09-21 08:44 pm (UTC)Or did my old agent really get me something unusual?
I believe it can be changed so that you have to give your (not unreasonably withheld) approval for defense of suit. Usually the publisher is going to be named anyway, regardless of whether or not you've agreed to hold them blameless contractually -- because the other party (i.e. the one doing the suing) sure didn't <wry g>.
"No settlement of a claim, suit, action or proceeding shall be final without Author's approval, which shall not be unreasonably withheld..."
Which is sort of clause 13.b.ii -- "no settlement shall be effected without prior written consent of the Author, which consent shall not unreasonably be withheld".
I'm not sure what the legal "unreasonably" means in this case. The publisher has maintained the right to hire its own legal counsel. But, umm. I guess if you don't want to settle, the whole thing can go to court, and the court can settle it for you, which will cost more.
Since I've never seen anyone sued for SF/F books before (there were one or two cases of plagiarism that tickle the back of my mind, but no particulars), I'm not sure how it works on a practical level.
no subject
Date: 2004-09-22 07:45 am (UTC)And there was a high-profile plagiarism with a couple of big romance writers.
If I remember once the contracts box surfaces, I'll check and see if it had anything useful in that clause.
no subject
Date: 2004-09-22 08:41 am (UTC)no subject
Date: 2004-09-23 09:49 am (UTC)The horrifying thing is, I don't remember who offended and whom was offended against...
I checked my first contract--Warner used a different numbering system. 12.) was Author's Warranties, 13.) Indemnity, and what I was remembering was Warner's clause 14.) Infringements--where we made changes that Warner did not object to. Dealing with copyright infringement, where Warner had the right but not the obligation to pursue copyright infringement. So Warner considered our changes to the Infringement clause reasonable.
no subject
Date: 2004-09-23 11:51 am (UTC)But it really killed her career.
no subject
Date: 2004-09-24 07:14 pm (UTC)But it really killed her career.
As someone who has a distinct voice, I can't imagine trying it--it could only work trying a new pseudonym.
It certainly didn't buy her time in the way she was hoping for...sad.